Ten years ago this week, the Supreme Court declined to rule that the Suicide Act’s prohibition on assisted suicide was a breach of Convention rights. The judgment, R (Nicklinson) v Ministry of Justice, has been much discussed since then. It has also been much misunderstood, partly because some of the judges in the majority indicated that they might in a future case conclude that the ban on assisted suicide was unjustified. The two judges in dissent, Lady Hale and Lord Kerr, would have ruled then and there that the 1961 Act was incompatible with the Convention’s right to private life.

Lady Hale has now returned to the fray, coming out in support of the My Death, My Decision campaign against the ban on assisted suicide. Speaking this week at an event to mark the tenth anniversary of the Nicklinson judgment, Lady Hale has dubbed the legislation “cruel and inhumane” for forcing persons to “go on living against their will”. She adds “Of course, there must be proper safeguards to make sure that their decisions are freely made”, but, as in her dissenting judgment, fails to establish that adequate safeguards could be devised. Indeed, writing-extrajudicially Lady Hale explicitly stated that her conclusion was reached “by reference to principle rather than evidence.”

In many of her judgments and speeches, Lady Hale has been keen to insist that the courts protect minority rights from the democratic process. But in this context, she thinks that respect for human rights and democracy alike require the law to change. Referring to the Nicklinson judgment, Lady Hale says that “Five of the nine Justices held the court could make a declaration that the current law banning assisted suicide was incompatible with…human rights”. The reason that three of the five did not join her and Lord Kerr was, she says, that they thought that “Parliament should be given the opportunity of putting things right first”. 

This is not quite accurate. Two of the judges in question, Lord Neuberger and Lord Wilson, did suggest that they saw the force of the argument that the Suicide Act was incompatible with respect for private life. But they also held that it would have been quite wrong to make such a ruling in Nicklinson itself, because the point had not been properly argued, which meant in part that the adequacy of safeguards had not been seriously examined. The other judge, Lord Mance, held that in principle it was open to the Court in a future case to find the Suicide Act incompatible with human rights, but he did not drop any hints about how he would rule in such a case.

Human rights adjudication should not proceed by way of winks and nudges. The Nicklinson judgment deserves strong criticism, which it has received from Policy Exchange since 2015 and from Lord Sumption in his 2019 Reith lectures. Still, Lady Hale is flatly wrong to imply that a majority of the Court in 2014 agreed with her that the Suicide Act was incompatible with Convention rights. This is highly relevant to what one should make of Lady Hale’s claim that in the decade since Nicklinson Parliament has “not put things right”, as if it has failed to correct an ongoing breach of the rights of people who are entitled to be assisted in killing themselves or to be killed.  

Anyone hearing Lady Hale’s latest intervention might be misled into thinking that the Suicide Act has been operating under a legal cloud. But in fact, the European Court of Human Rights has held on several occasions — including in a case decided only this month — that a categorical prohibition on assisted suicide is consistent with Convention rights. The judges in Nicklinson who thought that it was open to them to find that Parliament’s choice to ban assisted suicide was contrary to Convention rights were contemplating going well beyond the case law of the Strasbourg Court. 

Happily, the Supreme Court in 2021 firmly ruled that British courts cannot act in this way, unanimously overturning the Nicklinson approach. The Court has thus reached the view, for which Policy Exchange had long argued, that the Human Rights Act does not permit British judges to adopt a domestic interpretation of Convention rights that goes beyond the Strasbourg Court’s case law. The settled legal position, which one might have expected Lady Hale to mention, is thus that English law’s prohibition on assisted suicide is compatible with human rights law. 

The argument that Parliament has been neglecting its responsibilities to respect human rights by failing to change the law, therefore misrepresents both what the Court decided in Nicklinson and the settled law of the Strasbourg Court. In any case, far from ignoring the controversy about whether to legalise assisted suicide (or euthanasia), Parliament has held several legislative and non-legislative debates on the issue and voted down several bills pushing for reform. As Policy Exchange has documented in a recent paper, in the last decade Parliament has considered this issue very closely, aided by the input of a wide range of stakeholders and expert evidence, and a majority of MPs and peers have consistently upheld the status quo for sincerely held ethical reasons. 

… no parliamentarian, including Lady Hale, should ever surrender his or her critical judgement to an opinion poll

So much for Lady Hale’s insinuation that Parliament’s failure to change the law is a breach of human rights. What about her argument that the failure to change the law has been contrary to “all the evidence that the public would support a change in the law”? It is strange to see Lady Hale invoking public opinion as a reason to change the law.  Parliament’s responsibility, which it has ably discharged in this context, is to think hard about the reasons for and against changing the law, about the good of the community, including the plight of the most vulnerable amongst us. Parliament reasons in public, of course, and members of the public are free to engage MPs and peers in reasoned debate about the state of the law. But no parliamentarian, including Lady Hale, should ever surrender his or her critical judgement to an opinion poll.   

Lady Hale is wrong about the law as it stands and about the principles relevant to whether the law should change. The existing prohibition on assisted suicide is entirely consistent with human rights law, has a clear democratic pedigree, and represents Parliament’s considered decision on the matter following a great deal of thoughtful and difficult debate. In her latest intervention, as in her dissenting judgment in Nicklinson itself, Lady Hale thus inadvertently confirms that it is in Parliament, rather than in the courts, that this important question should be resolved.